Court File and Parties

COURT FILE NO.: FS-20-00017584-0000 DATE: 20240716 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: BRADLEY J. OKONSKY, AND: KIERAN ENGEL

BEFORE: Mathen J.

COUNSEL: Bradley J. Okonsky, Self-Represented Aria MacEachern, Respondent

HEARD: July 16, 2024

Endorsement

[1] The Respondent, Kieran Engel (“Respondent”, “Kieran”) brought a motion to have this Court declare the Applicant, Bradley J. Okonsky, (“Applicant”, “Bradley”) in breach of the Final Order and Minutes of Settlement dated February 23, 2023 (“Minutes of Settlement”, “Minutes”). In addition, Kieran seeks an Order compelling Bradley to comply with paragraphs 8, 12, 17, 18, 24, 43, 48, 51 and 52 of Minutes of Settlement, an order that he may not seek further relief from the Court with the Court’s express permissions, and costs.

[2] This is my decision on the Respondent’s motion. As explained below, I find that Bradley has breached some of the terms in the Minutes of Settlement, but not others.

[3] At this motion, Bradley was self-represented. He did not file an affidavit or factum. The lack of written materials was unsatisfactory. Nevertheless, given that Kieran’s counsel did not seek to prevent Bradley from making submissions (though she did express concern), I agreed to hear from him. While I largely have based my conclusions on the materials served and filed, Bradley’s oral submissions were nevertheless helpful in some respects.

[4] The parties, who never married, began cohabiting on October 1, 2016. They separated for a final time on October 22, 2019. They have one child, Jacob Bradley Okonsky, born July 5, 2018 (“Jacob”).

[5] The Minutes of Settlement were executed in lieu of a fourteen-day trial set down for February, 2023. The Minutes provide for a host of obligations and responsibilities. The ones relevant to this motion relate to parenting, communication, debt repayment and financial disclosure.

[6] Kieran has sole decision-making responsibility for Jacob who resides primarily with her. Under the Minutes of Settlement, Jacob is to exercise regular parenting time with Bradley.

[7] At the time of this motion, the parties’ agreement had been in effect for about sixteen months.

[8] In her materials, Kieran lists a series of concerns over Bradley’s parenting. She has neither sought to change the existing parenting arrangement nor connected those concerns to specific breaches of the Minutes. Therefore, I do not consider those concerns further in these reasons.

The Claims

Parenting

[9] Kieran cites the following breaches:

a. Bradley has been “repeatedly” late to return Jacob as set out in paragraph 8 of the Minutes. Kieran cites three incidents, two in April and one in August, 2023, involving a delay of between 30 and 45 minutes. In his oral submissions, Bradley acknowledged these incidents, though he pointed out that Jacob is frequently not ready when Bradley arrives to pick him up.

I accept that Bradley occasionally has been late returning Jacob.

b. Bradley has failed to honour the obligation under paragraph 24 of the Minutes to facilitate a FaceTime call with Kieran every night that Jacob is with him. Kieran cites a missed FaceTime call on April 1, 2023. Bradley did not dispute this allegation. I accept that Bradley failed to facilitate a call on one occasion.

c. Under paragraph 17 of the Minutes Bradley must inform Kieran if he wishes to take Jacob to the child’s grandparents, cousins, aunts/uncles. Bradley must also provide Kieran with 48 hours’ notice if he wants Jacob to spend an overnight at those persons’ homes. On April 1 and 2, 2023, Bradley took Jacob to his parents’ home without first providing Kieran with 48 hours’ notice. Bradley did not dispute this allegation. I accept that it happened.

d. Sometime in early May 2023, Kieran says, Bradley informed her that he would be taking Jacob to his grandparents’ home every weekend that summer. Kieran says this was a “blanket statement” that violated the spirit of the agreement described in the preceding paragraph. Bradley disputes Kieran’s characterization of their discussion. He says he never made a “blanket statement” but was merely providing information about his summer plans. In any event, there is no evidence before me that Bradley followed through on this “blanket statement”. I therefore dismiss this allegation.

e. The Final Minutes at paragraph 12 provide that Bradley is not to take Jacob to any bars or pubs. Bradley admits that in May 2023, he took Jacob to a Red Lantern pub. Bradley told me that the pub is divided into an upstairs and downstairs, and that Jacob remained in the downstairs area, which is for the staff’s use and where drinks are not served. Bradley stated that he was working at the Red Lantern part-time. The parties informed me that the pub has since closed.

The materials are not conclusive as to the extent of this breach. I am prepared to accept this incident as a breach of the Minutes of Settlement since Bradley admits taking Jacob to the Red Lantern which is a “pub”. However, Bradley states that he did so in the course of a work commitment. On a balance of probabilities, I do not find that Jacob was in an area where liquor was being consumed, or that Bradley was consuming alcohol at the time.

f. Paragraph 43 of the Minutes of Settlement mandates that Bradley has second choice for his summer vacation schedule in odd numbered years, and that he must select his weeks by March 31st. Kieran alleges that Bradley has failed to do this, something that he does not dispute. I accept that this was a breach.

Financial

[10] Several alleged breaches are financial in nature.

a. The first concerns a debt repayment. Paragraph 51 of the Minutes requires Bradley to pay monthly installments of $1,107 for his portion of the parties’ joint debts. He was late making some payments and the complete repayment occurred March 15, 2024 instead of December 31, 2023. Kieran claims that she incurred interest in the amounts of $1,941.31 on her line of credit and $1,580.24 on her visa credit card. Bradley acknowledges that he was late with these payments. He contests the amount of interest being claimed, however, as he finds it to be too high.

Kieran did not provide documentary evidence of the additional interest she claims she had to pay. Accordingly, while I accept that there was a breach, I am unable to find on a balance of probabilities that Kieran incurred $1,941.31 and $1,580.24 in interest charges owing solely to Bradley’s late payments.

b. Second, Kieran alleges late contributions to section 7 expenses as specified in paragraph 46 of the Minutes. Specifically, she states, in 2024 Bradley was four months late paying $534.97 for Jacob’s naturopath and other expenses. Bradley did not dispute this allegation.

c. The third financial breach concerns the sale of a 2011 Santa Fe required by paragraph 52 of the Minutes. The proceeds of sale were to be divided between the parties. When Bradley took the vehicle to a dealership in Barrie, he was advised that it was only worth between $1,500-$2,000. Kieran states that this is $5,500 – $6,000 less than the vehicle’s Blue Book value at the date of separation, that this depreciation is attributable to Bradley, and that she should be made whole for the difference.

I find that Bradley has failed to secure the sale of the vehicle in a timely manner. However, Bradley states that, upon inspection, the Santa Fe was found to have an alternator problem requiring extensive repairs. Essentially, he said, the car is a ‘write-off’. I was provided no specific evidence attributing the alternator problem, or the depreciation in general, to Bradley. I therefore order Bradley to ensure that the Santa Fe is sold within 30 days of this order. In addition to 50% of the difference in price, Bradley will pay Kieran $750 to account for any depreciation that may have occurred due to his delay in complying with this provision of the Minutes of Settlement.

Other breaches

[11] Bradley acknowledges that he has not submitted his financial statements for 2022 and 2023 as required by paragraph 47 of the Minutes of Settlement. He says that these statements have now been prepared and are ready to be sent to Kieran. I order him to do so within 7 days of this order. I wish to stress the importance of ensuring that the parties exchange updated financial information regularly.

[12] Bradley acknowledged that he has not secured life insurance as required by the Minutes of Settlement. I order him to do so within 7 days of this order.

[13] Bradley acknowledged that he has not kept his Our Family Wizard account updated. I order him to do so within 7 days of this order.

Penalty and other relief

[14] Kieran asks this Court to order that Bradley be fined $250 per day that he remains in breach of the Minutes of Settlement. In support of this figure, she cites several cases imposing penalties of even higher daily amounts. She characterizes Bradley’s breaches as ongoing and serious.

[15] Bradley did not dispute that this Court has the power to impose monetary penalties under Rule 1(8) of the Family Law Rules.

[16] Having said that, most of the cases Kieran cited involve breaches of much longer duration than this case, often three or more years: Granofsky v. Lambersky, 2019 ONSC 3251; parties who displayed contempt for the legal process: Troiano v. Theriault, 2022 ONSC 331, para. 16; or a flagrant disregard of specific orders: Florovski v. Florovski, 2019 ONSC 5013.

[17] I appreciate that the Applicant proposed a figure - $250 per day – that is less than in the cases mentioned above. Nevertheless, in my view, the circumstances here do not justify the sought after penalty. First, I do not find Bradley to be contemptuous of this Court or the legal process. Rather, he struck me as scattered and disorganized. Second, Bradley opened his submissions with an acknowledgment that he was in breach of several provisions of the Minutes of Settlement, for which he appeared remorseful. Third, as I have discussed, I found a number of Bradley’s explanations plausible and, consequently, dismissed some of the Applicant’s allegations. Fourth, some of the parenting breaches, such as returning Jacob thirty minutes late, were minor. I would not call them de minimus, but they certainly lie at the less serious end of the continuum. Fifth, a number of the breaches occurred entirely in the past.

[18] The factors noted in the preceding paragraph affect the amount of the penalty I will impose. I find it appropriate to order that, for every day that Bradley does not comply with specific deadlines set out in these reasons, he shall pay a monetary penalty of $150.

[19] Kieran seeks an order stating that Bradley is not entitled to any further Order of this Court unless the Court orders otherwise. I agree that such an order is appropriate.

[20] Kieran asks for costs on a full recovery basis. Given that I have not accepted all her submissions, I find that a lower costs award is appropriate.

Order

[21] In conclusion, I make the following order:

[22] The Respondent, Bradley James Okonsky, is in breach of the Minutes of Settlement and Final Order of Justice Diamond dated February 23, 2023, by virtue of:

a. Failing to abide by specified drop-off times on April 2, April 9 and August 8, 2023; b. Failing to facilitate a FaceTime conversation on April 1, 2023; c. Failing to provide the required notice to take Jacob to his grandparents’ home on April 1-2, 2023. d. Failing to provide the Applicant, in a timely manner, his choice of summer parenting weeks in 2023 and 2024. e. Bringing Jacob to the Red Lattern pub on one occasion in May, 2023; f. Failing to make timely debt repayments between December 2023 and March 2024; g. Failing to make timely contributions to section 7 expenses in April 2024. h. Failing to take adequate steps to arrange for the sale of the Santa Fe vehicle; i. Failing to submit the required financial disclosure for 2022 and 2023; j. Failing to provide documentary proof of life insurance; and k. Failing to maintain his subscription to Our Family Wizard.

[23] Within seven days of this order, the Respondent Bradley J. Okonsky shall rectify his breaches of paragraphs 26, 43, 47 and 48 of the Minutes of Settlement and Final Order dated February 23, 2023, by:

a. providing the Applicant Kieran Engel with documentary proof of his life insurance policy; b. providing the Applicant Kieran Engel with financial disclosure for 2022 and 2023; c. renewing his subscription to Our Family Wizard (OFW); d. advising the Applicant Kieran Engel of his proposed summer vacation schedule; e. paying to the Applicant Kieran Engel the sum of $750.

[24] Within thirty days of this order, the Respondent Bradley J. Okonsky shall rectify his breach of paragraph 52 of the Minutes of Settlement and Final Order dated February 23, 2023, by selling the Sante Fe vehicle and splitting the proceeds with the Applicant Kieran Engel.

[25] For every day that the Respondent Bradley J. Okonsky remains in breach of the Minutes of Settlement as described in paragraphs 21 and 22 of these reasons, he shall pay a monetary penalty of $150 per day of non-compliance to the Applicant Kieran Engel.

[26] The Respondent Bradley J. Okonsky shall not be entitled to any relief from this Court until he rectifies his breaches of the February 23, 2023 Minutes of Settlement.

[27] Within sixty days of this order, the Respondent Bradley J. Okonsky shall pay to the Applicant Kieran Engel costs in the amount of $6,804.07 inclusive of disbursements and HST.

Mathen J. Date: July 16, 2024